DLJ -v- London Borough of Islington (anonymity order)

Administrative CourtCivilHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2024-LON-003718

In the High Court of Justice
King’s Bench Division
Administrative Court

In the matter of an application for judicial review

29 November 2024

Before:

The Honourable Mr Justice Eyre

Between:

The King
on the application of
DLJ
(Claimant)

-v-

London Borough of Islington
(Defendant)

and

London Borough of Brent
(Interested Party)

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant and the Acknowledgements of service filed by the Defendant and the Interested Party

UPON it appearing that non-disclosure of the identity of the Claimant is necessary in order to secure the proper administration of justice and to protect a vulnerable person, pursuant to rule 39.2(4) of the Civil Procedure Rules and section 11 of the Contempt of Court Act 1981 and rules 5.4C of the Civil Procedure Rules

ORDER by the Honourable Mr Justice Eyre

  1. The Claimant’s application for anonymity is granted, and pursuant to CPR Rule 5.4A-5.4D and Rule 39.2, with effect from the date of this order and until further order:
    (a) The Claimant shall hereinafter be referred to in these proceedings as “DLJ” and there shall be substituted for all purposes of this case, in place of references to the name of the Claimant, reference to “DLJ”;
    (b) There shall be no publication of any name, address, picture or other information likely to lead to the identification of the Claimant as being the Claimant in these proceedings;
    (c) In paragraph (b) “publication” means communication to the public or any section of the public whether by way of report of the proceedings or otherwise. It includes publication in a newspaper or broadcast, or on the internet, by any person;
    (d) The Defendant, and any party served with or given notice of the anonymity order, has permission to apply to discharge or vary that order. Any application for that purpose must be made in writing, on notice to all parties;
    (e) Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (i) the Claimant is referred to in those documents only as “DLJ”; and (ii) any reference to the name of the Claimant be deleted from those documents
    (f) Any application for permission to inspect or obtain a non-anonymised version of a document must be made on notice to the Claimant and in accordance with CPR r.5.4C(6).
  2. The Claimant has permission to act without a litigation friend.
  3. The Claimant has permission to rely on the witness statement dated 22nd November 2024.
  4. The application for permission to apply for judicial review is granted.
  5. The claim shall be transferred to the Upper Tribunal (Immigration and Asylum Chamber) at Field House, London under section 31A(3) of the Senior Courts Act 1981 for directions and the listing of a fact finding hearing to determine the claimant’s age.
  6. The Claimant has permission to rely on the report dated 25th November 2024 of Helen O’Keeffe for the purposes of his interim relief application only.
  7. The Claimant’s application for interim relief is refused.
  8. Costs reserved.

This order has been made without a hearing. Any party affected by this order may apply within 7 days of the service of this order on that party to have it set aside, varied, or stayed.

Reasons

  1. Despite the importance of open justice it is appropriate for the name of the Claimant to be anonymised in light of his status as an asylum seeker and his mental health difficulties.
  2. It is also appropriate for the Claimant to be permitted to act without a litigation friend in light of his accepted age.
  3. I have permitted the Claimant’s further witness statement with considerable reluctance. The principal matters raised in the Defendant’s Summary Grounds of Resistance, in particular the calendar in which the Claimant knew his date of birth have been set out previously and could have been addressed in the original claim. However, I have read the statement and give permission for its use.
  4. The Claimant’s case is very far from compelling. There is considerable force in the points made by the Defendant and considerable scope for doubting the Claimant’s account. Nonetheless, the claim has sufficient merit to surmount the relatively low hurdle for the grant of permission.
  5. Transfer to the Upper Tribunal is appropriate and convenient in light of the expertise of that body in dealing with cases of this kind.
  6. The Defendant is right to say that Miss O’Keeffe’s report does not appear to be relevant to the substantive issue of the Claimant’s age. However, the matters in that report are potentially relevant to the consideration of the balance of convenience in relation to the application for interim relief and I have given permission for it to be relied on solely for the purpose of that application.
  7. I have regard to the criteria for the grant of interim relief in a claim for judicial review. Those are summarised in the Administrative Court Judicial Review Guide at 16.6. In short I have to consider whether a real issue to be tried has been shown and then to consider the balance of convenience. The underlying strength of the substantive claim can be a relevant factor at the latter stage and will often be a significant factor (see per Lindblom LJ in R (X) v OFSTED [2020] EWCA Civ 594 at [66]).
  8. Where the interim relief sought is for a direction that the public body act positively to provide services or to take action of a particular kind regard has to be had to two further considerations. The first is the fact that the grant of such relief will, if the claim is ultimately unsuccessful, have the effect of causing the public body to use finite resources to perform a task or provide services which it is not obliged to perform or provide and which (on the hypothesis of the claim failing) it has made a lawful decision not to perform or provide. The second is the potential harm to a claimant if interim relief is refused in circumstances where the claim ultimately succeeds and so the claimant is, by the refusal of interim relief, deprived for a longer period of the services which he or she is entitled to receive and where the failure to provide the same is found to have been unlawful.
  9. In the context of a challenge to an age assessment and an application for interim relief in the form of a move from adult accommodation the assessment of the balance of convenience and the assessment of the foregoing considerations requires further and particular factors to be taken into account. In that regard if interim relief is refused and the claimant is ultimately found to have been a child then the refusal of interim relief will have caused a child to be in adult accommodation which necessarily is to be seen as having been unsuitable for a child. Conversely, if interim relief is granted and the claimant is ultimately found to have been an adult then the effect of the grant of interim relief will have been to cause an adult to be accommodated in accommodation suitable for a child and almost inevitably alongside those who are in truth children. The risks involved in the former situation are to be seen as being as a general rule greater than those in the latter. However, that is a general rule and much will depend on the circumstances of the particular case and it is necessary to consider the strength of the substantive case; the asserted age of the claimant; and the circumstances of the accommodation while also looking at the case in the round.
  10. Here, as I have already noted, the Claimant’s case is far from compelling. In addition, he is on his own account almost 17½. Absent other considerations the balance of convenience would in those circumstances be firmly against the grant of interim relief. I have reflected on the factors in favour of interim relief. The most significant of those is the material in Miss O’Keeffe’s report in relation to the Claimant’s mental health. That is a relevant factor. However, it is clear that being accommodated with adults is far from being the sole or even the predominant element in the Claimant’s mental health difficulties. Even when account is taken of those difficulties I am satisfied that the balance of convenience falls against the grant of interim relief.

Signed: Stephen Eyre
Date: 29/11/2024